Russian Football at CAS: Why a Stay of Execution was Rejected

How does CAS decide on provisional measures? CAS announced on 16 and 18 March 2020 (for the UEFA and FIFA appeals respectively) that it had rejected the FUR’s request for a stay. CAS has not provided the Panel’s written reason. However, Article R37 of the CAS Code provides that there are three criteria that CAS looks at when deciding whether to apply any provisional or conservatory measures pending a final decision: (i) whether the provisional measure is necessary to protect the applicant from irreparable harm; (ii) the likelihood of the appellant succeeding in the substantive appeal; and (iii) whether the interests of the appellant outweigh those of the respondent. CAS case law is clear and consistent that these three criteria are considered cumulatively. (i) Irreparable Harm It would appear that the criterion of irreparable harm has been met, given that the Russian men’s national football team will not participate in the Qatar 2022 FIFA World Cup qualification playoffs and Spartak Moscow did not participate in the second leg of its Europa League round of 16 fixture. Russia was scheduled to play in the play-off semi-final this coming Thursday and, without a provisional measure staying the execution of the ban, their opponent Poland have received an automatic qualification to the next round. In a 2015 case concerning anti-doping proceedings where an athlete sought a provisional relief from a sanction (CAS 2015/A/3925), a CAS Panel noted that to the extent an athlete remains ineligible to qualify for a certain event which is necessary for consideration to compete in a major event (such as the World Championships), such athlete, on any objective view, sustains irreparable harm. Of course, irreparable harm has also been suffered by the Ukrainian national team and Dynamo Kiev, who have been unable to play matches for the FIFA World Cup qualifiers and the UEFA Youth League, respectively. (ii) The Likelihood of the Appellant Succeeding in the Substantive Appeal This criterion is quite clearly the key question, and plenty has already been written about some of the various legal arguments that each party are likely to put forward. The key is that the FIFA Statutes allow for the temporary suspension of a Member Association solely at the request of the FIFA Council or where a Member Association seriously violates its obligations, while also providing that FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights. Additionally, a CAS Panel found in 2018 (in an appeal brought by the Palestine FA, CAS 2017/A/5166 & 5405) that FIFA could exercise a certain level of “discretion” in applying its Statutes. The current case is therefore likely to build on previous case law and set the scene for the interaction between football (and sport generally) and human rights for the years to come. (iii) The Interest of the Parties Even if CAS had considered that the FUR had a strong likelihood of success in its substantive appeals, CAS would still need to conclude that the interests of the FUR outweigh those of the respondents. This question has previously been considered by CAS, notably in an anti-doping case concerning the Egyptian track and field athlete Ihab Abdelrahman (CAS OG 16/023). On 20 July 2016 and in the lead up to the 2016 Rio Olympics, the Egyptian anti-doping organisation was notified that his A sample (his first sample) revealed the presence of a Prohibited Substance (with athletics events beginning on 12 August 2016 at the Olympics). He had been provisionally suspended pending analysis of his B sample (a second sample), but requested that his provisional suspension be lifted to allow him to compete at the Olympics. In deciding whether or not to let him compete, the Panel weighed Abdelrahman’s interest of not competing against other athletes’ interests of possibly being deprived of a medal should he subsequently be found to have violated the anti-doping rules. CAS found that the key consideration was the interests of sport in general and the relevant international federation in particular, with the Panel concluding that protecting the image of sport was paramount and that Abdelrahman shouldn’t compete in the Games. Applying the same logic, one would anticipate that CAS found that the interests of the FUR did not outweigh those of the respondents. Clearly, the potential damage caused to FIFA and UEFA, as well as the respondent teams (in particular the Ukrainian national team and its clubs, their opponents, and any team drawn to play against a Russian team), outweighs the damage suffered by the FUR as a consequence of its teams not being permitted to participate in FIFA and UEFA competitions. So where does that leave Russian football? As mentioned, Article R37 of the CAS Code and CAS jurisprudence provide that unless all three criteria listed above are found in favour of the appellant, then a provisional measure cannot be granted (here, the request for the ban to be lifted until a final decision is reached). CAS has therefore decided that at least one (if not all) of the criteria was not met by the FUR. As a consequence, it seems highly unlikely that Russia will be able to participate in the qualification playoffs for Qatar 2022.   [1] The Respondents to the FIFA appeal are FIFA, UEFA and the national FA’s of Poland, Sweden, the Czech Republic, Montenegro and Malta. The Respondents to the UEFA appeal are UEFA and the national FA’s of Greece, Belarus, Denmark, Luxembourg, Austria, Malta, Portugal, England, Spain, Ireland and France